B RAMESH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) "What indeed is the first hand elementary duty of the learned Magistrate while taking cognizance of the offence under Sec. 190 of the Criminal Procedure Code, 1973, before issuing process to the accused ? Is he supposed to be merely a post-box or post-office to have the rubber stamped order ready for issuing process to the accused moment the complaint is filed before him, as done in the instant case"? OR is he required to apply his mind to the allegations made in complaint, examine them and further be quite careful and circumspect rather discreet before issuing the process unerringly bearing in mind the consequential physical, mental and financial hardship and inconvenience that may entail as a result of hasty and mechanical faulty issuance of the process/es against the accused ? This, in short, is the most material question arising for consideration in this Misc. Criminal Application because these days unfortunately it is found that in many such cases processes are issued just on mere asking, casually, mechanically, rather as a matter of routinal course, placing the innocent accused persons in given cases in most piquant situation unnecessarily disturbing their ordinary peaceful way and a vocation of normal life, which is if not actually taking away atleast interferes and disturbs his liberty. None indeed has any right to disturb other person's tranquillity without there being justification for the same. Mental peace of a citizen is as important as his other freedoms, including the physical liberty .This is how the dignity of citizen is ordinarily required to be taken care of and respected ..

(2.) To narrate few relevant facts - According to the complainant Uttamchand M. Jain he is the partner of the Firm, viz., M/s. Meghraj Kantilal at Ahmedabad dealing in cloth business. While B. Ramesh and three others are doing cloth business in the name and style of Messrs. B. and T. Enterprise at Madras. Some 12 months prior to the filing of the complaint, the accused approached him (no name is given) saying that his firm was a reputed firm and was doing a large scale cloth business at Madras. They had already came with cash amount and draft which were utilised while making purchase at Bombay and Surat. Accordingly, it was requested by the accused that they be supplied with the cloth on credit, assuring that the payment of which will be immediately made on reaching Madras. To inspire the confidence of the complainant, the accused gave names of 3-4 merchants of Ahmedabad and stated that he was regularly purchasing cloth from them and was keeping the word of regularly paying their bill amount. This is how, according to the complainant, he was tempted rather duped to sale the goods to him, and accordingly he succumbed and sold the goods worth (i) Rs. 9,786-96 from his shop; (2) Rs. 12,383-90 of his sister concern - S. N. Enterprise; (3) Rs. 10,565-14 of M. K. Textiles ; (4) Rs. 16,514- 48 of Amitkumar and Company; (5) Rs. 8,404-61 of Vikram Textiles; (6) Rs. 12,655- 90 of Mina Textiles; (7) Rs. 3,831-05 of Rahul Textiles. Thereafter, the complainant waited for sometime for the payment of the aforesaid outstanding amounts towards which the accused had purchased the goods, but that was of no consequence as no payment was made. As a result, the complainant went to Madras, where on inquiry, he came to know that the accused was a bogus merchant and that he has sold away the goods from him on the way encashing the same. Further, according to the complainant, when he contacted the accused and demanded the money, he gave an evasive reply saying "what money and for what"; at present he had no money and if in future if the payment was demanded, it would be difficult for him to get out of Madras, and that he will make the payment as and when he will have the money." According to the complainant from the conduct of the accused, he has a reason to believe that the right from the beginning accused had an intention to cheat and that had indeed he been not tempted by creating false trust by the accused, under no circumstances the goods would have been sold to him. On the basis of these allegations, Uttamchand Jain - the respondent No. 2 filed a complaint against the petitioner - B. Ramesh and three others for the alleged offences punishable under Sec. 420 of I.P.C. before the learned Metropolitan Magistrate, Ahmedabad, wherein on the same being registered as Criminal Case No. 5625 of 1992, process came to be issued giving rise to the present petition for quashing the same.

(3.) When this matter was called out, Mr. J. R. Shah, the learned Advocate for the petitioner was absent. The respondent No. 2 though served, has neither remained personally present nor through his learned Advocate. It is under these circumstances that with the assistance of Mr. U. A. Trivedi, the learned A.P.P. this Court has heard this petition and disposed of the same.